March 20, 2017

Utica Acupuncture P.C. v Amica Mut. Ins. Co. (2017 NY Slip Op 50331(U))

https://www.beynensonlaw.com/case-law/utica-acupuncture-p-c-v-amica-mut-ins-co-2017-ny-slip-op-50331u/

Court: Appellate Term, First Department
Decided: March 20, 2017
Citation: 2017 NY Slip Op 50331(U) · 55 Misc 3d 126(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Declined to follow in 1 and followed in 3 later decisions (see Cited by)
Issues: IME no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Utica Acupuncture P.C. v Amica Mut. Ins. Co., 55 Misc 3d 126(A), 2017 NY Slip Op 50331(U) (App Term, 1st Dept 2017)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer failed to submit competent proof that the assignor missed the scheduled IMEs. The IME doctor's conclusory affirmation did not adequately explain the basis for recalling, approximately two years later, that the assignor had not appeared on the scheduled dates. The affirmation therefore lacked probative value and did not support summary judgment dismissing the provider's no-fault action. The Appellate Term, First Department, reversed the order granting the insurer's motion and denied it, without reaching the provider's waiver argument.

Reported in New York Official Reports at Utica Acupuncture P.C. v Amica Mut. Ins. Co. (2017 NY Slip Op 50331(U))

[*1]

Utica Acupuncture P.C. v Amica Mut. Ins. Co.

2017 NY Slip Op 50331(U) [55 Misc 3d 126(A)]

Decided on March 20, 2017

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 20, 2017

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570595/16

Utica Acupuncture P.C. a/a/o Volcy Jean, Plaintiff-Appellant,
against
Amica Mutual Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Paul A. Goetz, J.), entered June 24, 2014, which granted defendant’s motion for summary judgment.

Per Curiam.

Order (Paul A. Goetz, J.), entered June 24, 2014, reversed, with $10 costs, and defendant’s motion denied.

Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IMEs). The conclusory affirmation of defendant’s IME doctor lacked probative value, since she failed to adequately state the basis of her recollection, some two years later, that the assignor did not appear on the scheduled IME dates (see Five Boro Med. Equip., Inc. v Praetorian Ins. Co., 53 Misc 3d 138[A], 2016 NY Slip Op 51481[U] [App Term, 1st Dept 2016]; Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept 2016]).

In view of our disposition, it is unnecessary to address the waiver argument raised by plaintiff.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 20, 2017

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

No-show defense: insurer's proof

Open the full map

Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer failed to prove the nonappearance by someone with personal knowledge

Held the insurer failed to prove the assignor's IME nonappearance because its IME doctor's conclusory affirmation did not state the basis of her recollection, two years later, that the assignor did not appear.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 14 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

Five Boro Med. Equip., Inc. v Praetorian Ins. Co. (2016 NY Slip Op 51481(U))The insurer's IME doctors' conclusory affidavits failed to establish the assignor's nonappearance at scheduled IMEs. The insurer obtained summary judgment dismissing the provider's first-party no-fault action.
Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am. (2016 NY Slip Op 50339(U))The insurer failed to establish IME nonappearance through affidavits that did not explain the doctors' recollections a year later.
Metro 8 Med. Equip., Inc. v ELRAC, Inc. (2016 NY Slip Op 50174(U))The insurer failed to submit competent proof that the assignor missed scheduled IMEs. The Appellate Term, First Department, reversed the order granting summary judgment dismissing the provider's assigned no-fault action and denied the insurer's motion.

Cited by

A label shows how the later decision treated this one.

Advanced Recovery v Allstate Ins. Co. (2021 NY Slip Op 21148) Declined to followThe examiners' affidavits established IME nonappearance despite being sworn over three years later without explaining the basis of recollection.
Satya Drug Corp. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51505(U)) FollowedThe insurer failed to prove the assignor's nonappearance at scheduled IMEs with competent evidence.
Active Care Med. Supply, Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51408(U)) FollowedThe insurer's attorney affirmation failed to establish nonappearance on the scheduled EUO date.
Dassa Orthopedic Med. Servs. PC v Amica Mut. Ins. Co. (2019 NY Slip Op 51664(U)) FollowedThe insurer's missing policy proof prevented summary judgment on coverage and left the choice of governing law unresolved.

Similar decisions

Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2016 NY Slip Op 51381(U))The insurer's IME physicians failed to explain the basis for recalling the assignor's nonappearance approximately eight years later.
NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal.
Acupuncture Choice, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51822(U))The provider failed to establish entitlement to summary judgment where timely IME nonappearance denials remained unrebutted.
Utica Acupuncture, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50643(U))The provider failed to rebut the insurer's proof of outstanding verification and lack of medical necessity for acupuncture.
Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U))The insurer defeated an IME notice-address challenge by proving that scheduling letters were also mailed to the assignor's attorney.